Hayne v Zheng
[2023] ACTSC 326
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hayne v Zheng |
Citation: | [2023] ACTSC 326 |
Hearing Date: | 16 October 2023, 15 & 27 November 2023 |
Decision Date: | 27 November 2023 |
Before: | Loukas-Karlsson J |
Decision: | (1) The appeal is upheld and the sentence of the Magistrate is set aside. (2) On the charge of minor theft (CC2020/8172), the Good Behaviour Order is revoked and the offender is sentenced to one months’ imprisonment commencing 28 November 2022 and expiring 27 December 2022. (3) On the charge of drive with prescribed drug in oral fluid (CC2022/1073), the offender is sentenced to one month and 15 days’ imprisonment, commencing on 26 December 2022 and expiring on 9 February 2023. I impose a licence disqualification of two years commencing 4 December 2023. (4) On the charge of possess stolen property (CC2022/1074), the offender is sentenced to three weeks’ imprisonment commencing from 3 February 2023 and expiring on 23 February 2023. (5) On the charge of use numberplate not properly issued (CC2022/1075), the offender is sentenced to a fine of $600 with no time to pay. (6) On the charge of drive while disqualified (CC2022/1076), the offender is sentenced to four months and 15 days’ imprisonment commencing 14 February 2023 and expiring 28 June 2023. An automatic licence disqualification of 24 months applies, to be served concurrently with the licence disqualification in Order 3, commencing 4 December 2023. (7) On the charge of dishonestly drive a motor vehicle (CC2022/1077), the offender is sentenced to 13 months’ imprisonment commencing 28 April 2023 and expiring 27 May 2024. (8) I impose a nonparole period of one year and seven days commencing 28 November 2022 and expiring 4 December 2023. |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Sentence appeal – where respondent conceded multiple specific errors – re-sentence – “fairly typical” example of these types of offences – substance abuse – prospects for rehabilitation – significant criminal history – not necessary to determine whether jurisdiction to hear appeal of licence disqualification periods – sentenced to term of imprisonment – nonparole period imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) pts 5.1, 5.2, ss 6, 7, 10, 33 35, 37, 62, 63 |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 |
Parties: | Jamie Stewart Hayne ( Appellant) Director of Public Prosecutions ( Respondent) |
Representation: | Counsel E Chen ( Appellant) M Smith ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 26 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Richter Date of Decision: 13 April 2023 Case Title: Hayne v Zheng Court File Number: 226604 |
LOUKAS-KARLSSON J:
Introduction
1․On 27 November 2023, final orders were made concerning this appeal. Reasons were reserved. Reasons now follow.
2․On 13 April 2023, the appellant, Mr Jamie Hayne was sentenced by Special Magistrate Richter (the Magistrate) as follows:
(a)Drive with prescribed drug in oral fluid (CC2022/1073): convicted and sentenced to two months’ imprisonment from 25 January 2023 to 24 March 2023, and a licence disqualification of three years;
(b)Possess stolen property (CC2022/1074): convicted and sentenced to one month of imprisonment commencing 27 February 2023 and expiring 26 March 2023;
(c)Use numberplate not properly issued (CC2022/1075): convicted and fined $800. The period of time over which the fine was to be paid was not specified;
(d)Drive while disqualified (CC2022/1076): convicted and sentenced to six months’ imprisonment commencing 13 April 2023 and expiring 12 October 2023, and a licence disqualification of two years (concurrent with above disqualification);
(e)Dishonestly drive a motor vehicle (CC2022/1077): convicted and sentenced to 19 months’ imprisonment commencing 13 April 2023, suspended on 13 July 2024 after serving 15 months upon entry into a Good Behaviour Order (GBO) for a period of 18 months; and
(f)Possess stolen property (CC2022/2341): convicted and sentenced to one month of imprisonment commencing 13 April 2023 and expiring 12 May 2023.
3․I note in relation to the first charge CC2022/1073, the Magistrate pronounced the order sentencing the appellant to “58 days’ imprisonment to commence 25 January 2022”. The commencement date in 2022 is clearly incorrect, in light of the 58 days indicated by the Magistrate and the maximum penalty for this offence being three months’ imprisonment. The Magistrate must have intended for the sentence to commence 25 January 2023, as has been reflected above.
4․The appellant was also re-sentenced by the Magistrate in relation to a minor theft (CC2020/8172), where the commission of the above offences resulted in the breach of a GBO attached to a suspended term of imprisonment. The GBO was revoked, and the appellant was sentenced to one month of imprisonment to commence 13 April 2023.
5․The appellant was sentenced to a total effective sentence of 641 days’ imprisonment, consisting of two discrete periods from 25 January 2023 to 26 March 2023, and then from 13 April 2023 to 12 November 2024. On the current sentence, the appellant will be released on 13 July 2024 after having served a total of one year, five months and one day of imprisonment. The total driver’s licence disqualification period imposed was three years commencing “on the completion of all of [the offender’s] periods of imprisonment”. The issue of the ambiguity of the licence disqualification period commencement is discussed later in this judgment.
Grounds of appeal
6․The appeal proceeding concerned the five charges listed above, as well as the re-sentence on the minor theft offence.
7․The grounds of appeal, particularised in the appellant’s further amended notice of appeal dated 16 October 2023, are as follows:
(a)Ground 1: That the term of imprisonment imposed in relation to CC2022/1077 is manifestly excessive;
(b)Ground 2: That the learned Magistrate erred in failing to set a nonparole period in respect of CC2022/1077;
(c)Ground 3: That the learned Magistrate erred in not giving reasons for not setting a nonparole period in respect of CC2022/1077;
(d)Ground 4: That the learned Magistrate erred by failing to provide any discount for the pleas of guilty in respect of each charge;
(e)Ground 5: That the learned Magistrate erred in disqualifying the appellant from holding or obtaining a driver’s licence for a period of time commencing upon the completion of all terms of imprisonment;
(f)Ground 6: That the learned Magistrate erred in failing to take into account the period during which the appellant had been held in custody in relation to the offences under appeal; and
(g)Ground 7: That the learned Magistrate erred in punishing the appellant twice by imposing a separate sentence for CC2022/2341 when that offence was already taken into account for CC2022/1074.
8․The appellant seeks the following:
(a)That the appeal be allowed;
(b)That the conviction for CC2022/2341 be set aside; and
(c)That the sentences be set aside and a sentence according to law be substituted.
9․Counsel for the appellant submitted at the hearing on 16 October 2023 that the appellant no longer relied upon Ground 5. Counsel for the appellant, however, sought to reagitate this ground of appeal at the hearing on 27 November 2023 following oral and written submissions by both parties. This will be discussed below at [54]-[60] concerning the disqualification ground of appeal and later in the judgment under the heading “Licence disqualification periods” from [127]-[138].
10․I note, in relation to Ground 7, that orders were made at the appeal hearing for this conviction to be set aside and then, in the absence of evidence being put forward by the respondent (the prosecution), the charge was subsequently dismissed. Reasons for this are below at [2929․]-[30].
Jurisdiction
11․Part 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) confers jurisdiction on this Court to hear appeals from the Magistrates Court, including appeals against sentences imposed by it: divs 3.10.1 and 3.10.2 of the Magistrates Court Act. The orders the Supreme Court may make on such an appeal are set out in s 218.
12․The authorities clearly establish that a sentence imposed by the Magistrates Court will not be set aside simply because the appellate court, on hearing the appeal, might have imposed a different sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 (Markarian) at [25]. Error must be established, and the Court will only exercise its powers to intervene where, having regard to the evidence before it, it is established that there is legal, factual or discretionary error.
13․In this case, the appellant alleges both specific error and manifest excess (see House v The King (1936) 55 CLR 499 at 505; Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 (Barbaro) at [26] per French CJ, Hayne, Kiefel and Bell JJ; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale) at [6]).
14․Even where error is established, the appellate court is not required to intervene if satisfied that the sentence is nevertheless appropriate: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell) at [35]. I note in this context that the admonition against “tinkering” more appropriately applies to prosecution appeals not offender appeals: see Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312; 198 A Crim R 565. In this case, as will become clear later in this judgment, it is necessary to exercise the sentencing discretion afresh and to re-sentence the appellant, in accordance with Kentwell.
Background to the proceedings and facts
15․It is important to set out the background facts as the facts are somewhat convoluted.
16․First, by way of background, on 15 February 2021, the Magistrates Court disqualified the appellant from holding or obtaining a driver’s licence for a period of 12 months for the offence of driving while disqualified (CC2020/11718).
17․Second, by way of background, the events giving rise to CC2020/1872, the minor theft, occurred on 11 January 2020. On 3 November 2021, the appellant was convicted and sentenced by the Magistrates Court in relation to that offence of minor theft to one month of imprisonment, wholly suspended upon entering into a six-month GBO.
18․On 25 January 2022, the appellant was stopped by police while driving a vehicle which was bearing false numberplates. The appellant had one passenger in the vehicle at the time. This conduct gave rise to the following offences:
(a)CC2022/1075 – Use numberplate not properly issued; and
(b)CC2022/1076 – Drive while disqualified.
19․The appellant was required to undergo an alcohol screening test which was negative. The appellant was required to undergo a drug screening test which was positive for a prescribed drug. When asked by police what drugs he had taken, the appellant responded, “ice and pot”. Subsequent analysis confirmed the appellant had methylamphetamine in his oral fluid. This gave rise to the offence of driving with a prescribed drug in oral fluid (CC2022/1073).
20․Police further observed that the ignition barrel of the vehicle the appellant was driving had been tampered with and removed from its ordinary position. Police formed the belief that the vehicle was a motor vehicle which had been reported stolen on 10 January 2022 in the suburb of Griffith, ACT. The appellant was unable to provide proof of purchase of the vehicle or contact details of the person he had purchased it from. This gave rise to the offence of dishonestly driving a motor vehicle (CC2022/1077). The appellant was then placed under arrest.
21․The appellant removed a number of bags from the vehicle which were then searched by police. Police located a black wallet and a black ‘ASICS’ branded duffel bag. Those were both searched and police located a number of personal documents and bank cards belonging to other persons. Those items formed the basis of the offence of unlawfully possessing property reasonably suspected of being stolen (CC2022/1074).
22․The appellant was remanded in custody on 25 January 2022. After a number of failed applications for bail, bail was granted on 12 April 2022. On this date, the appellant entered pleas of guilty to CC2022/1073, 1075-7. A further adjournment was sought to make representations in relation to CC2022/1074, the offence of unlawfully possessing property reasonably suspected of being stolen. A plea of guilty was then entered in relation to CC2022/1074 at the following mention on 3 May 2022.
23․On 29 November 2022, the appellant was brought before the Magistrates Court for breach of bail. Bail was revoked and the appellant remained in custody until his sentence on 13 April 2023.
24․A second series of matters (not detailed above at [2]) for which the appellant had been charged included an offence of possess stolen property (CC2022/2341), to which the appellant entered a plea of guilty on 6 February 2023 following a defended hearing. The other charges in this second series of matters resolved on 1 March 2023. At that time, the remaining charge CC2022/2341 was adjourned for sentence before the Magistrate on 13 April 2023 alongside the charges outlined at [2].
25․At the sentence hearing on 13 April 2023, the Magistrate had before him:
(a)A Statement of Facts in relation to CC2022/1073-7;
(b)An ACT Government Analytical Laboratory certificate tendered on 3 May 2023;
(c)A criminal history tendered on 13 April 2023; and
(d)A Pre-Sentence Report.
26․Parties agreed on appeal that it was not clear whether the Magistrate at first instance had a copy of a Statement of Facts in relation to the breach matter, CC2020/8172.
27․At the sentencing proceeding on 13 April 2023, the prosecutor appearing sought leave to withdraw a charge CC2022/2390, attempt to obtain property by deception. The Magistrate noted the charge appeared to have already been dismissed. Parties before the Magistrate agreed it had not yet been dismissed, and the Magistrate noted the charge was to be withdrawn.
28․As was submitted before me, it is clear the Magistrate was correct and the charge CC2022/2390 had already been dismissed along with the other matters from the second series finalised on 1 March 2023. Parties were mistaken as to the charge number. As was agreed by parties before me on appeal, the charge that ought to have been withdrawn was the offence of possess stolen property, CC2022/2341, as the conduct relating to that charge was encompassed in the “amended annex A” handed up in the sentence proceedings for CC2020/1074. The appellant had entered a plea of guilty to this charge.
29․It also appears in the transcript of the sentence proceedings, the Magistrate mistakenly refers to the charge CC2022/2341 as if referring to the breach matter, CC2020/8172. Counsel for the appellant at first instance corrected the charge number being referred to and this was acknowledged by the Magistrate. The charge number CC2022/2341 does not appear on the orders signed by the Magistrate in relation to CC2022/1073-7. Counsel for the respondent on this appeal noted that, on inspection of the Court file, the Magistrate has separately noted on the bench sheet a sentence of one month of imprisonment in respect of the charge CC2022/2341.
30․In light of the above, counsel for the respondent appearing before me conceded that this conviction for CC2022/2341 was entered in error. The respondent submitted that, in accordance with s 218(1)(a) of the Magistrates Court Act, this Court may set aside the conviction. The respondent indicated it would not put forward any evidence in relation to this charge. The Court may then, in accordance with s 218(1)(b), dismiss the charge. I made orders at the hearing of this appeal that this charge (CC2022/2341) be dismissed following confirmation by the respondent that no evidence was to be put forward.
Appeal
31․I will now consider the grounds of appeal advanced by the appellant.
32․I note at the outset that the respondent properly accepted that the Court would find errors established in Grounds 2, 3 and 4. As will be clear from my reasons below, I agree. I will address the conceded patent errors first and then the subsequently reagitated Ground 5, before considering the ground concerning pre-sentence custody and the ground concerning manifest excess.
Appeal Grounds 2 and 3 – Failure to set a nonparole period or provide reasons for declining to do so
33․Counsel for the appellant submitted the failure of the Magistrate to set a nonparole period in respect of CC2022/1077 (dishonestly drive a motor vehicle), and the failure to explain why no nonparole period was imposed amounted to error.
34․As outlined earlier, in relation to CC2022/1077, the appellant was sentenced to a period of 19 months’ imprisonment, to be suspended after serving 15 months on condition that the appellant enter into a GBO for a period of 18 months. The appellant would have been required to serve 79 percent of that sentence in full-time custody before being released under supervision.
35․Part 5.2 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) governs the setting of nonparole periods. Section 65 of the Sentencing Act provides:
65Nonparole periods—court to set
(1)This section applies if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer.
(2)The court must set a period (a nonparole period) during which the offender is not eligible to be released on parole.
NoteIf the offender is released on parole, the sentence is not discharged unless the parole is completed without the parole order being cancelled (see Crimes (Sentence Administration) Act 2005, s 140 and s 160).
(3)When the court sets the nonparole period, the court must state when the nonparole period starts and ends.
NoteA sentence may be backdated to account for time already held in custody (see s 63).
(4)However, the court may decline to set a nonparole period in sentencing the offender if the court considers that it would be inappropriate to set a nonparole period having regard to the nature of the offence or offences and the offender’s antecedents.
(5)If the offender is subject to a sentence of life imprisonment, the court must not set a nonparole period for any sentence of imprisonment that is imposed on the offender.
(6)If the sentence of imprisonment is partly suspended, the period for which it is suspended must be disregarded for this section.
36․Where an offender is sentenced to a term of imprisonment that is longer than one year, the Court must set a nonparole period unless the Court considers it would be inappropriate to do so, having regard to the nature of the offending and the offender’s antecedents. The principles to be applied when setting a nonparole period are well established: see The Queen v Ruwhiu [2023] ACTCA 18 at [18]-[23], [108]-[113].
37․Counsel for the appellant submitted that, as the Magistrate imposed a sentence of imprisonment for a period greater than one year, the Magistrate was required by s 65 to impose a nonparole period, or expressly decline to do so under s 65(4), and provide reasons. It is clear from the remarks on sentence and the sentence itself that the requirements of s 65 were not adhered to.
38․Counsel for the appellant properly further submitted that, although there is no explicit statutory provision requiring a Court to provide reasons for declining to set a nonparole period, there nevertheless is a “legislative expectation” that there be an articulation of the reasons why such a course is taken. The judgment of Penfold J in Okwechime v Sindel [2009] ACTSC 162; 235 FLR 299 at [36] is instructive in this regard:
…However, I consider that the legislative expectation that a non-parole period will be set unless there are particular reasons for not doing so requires a further articulation of why the prison sentence found to be necessary has also been found necessary to be served in its entirety in full-time custody — even if that articulation in fact consists of pointing to the same matters as initially led to the conclusion that a prison sentence was necessary.
39․On my review of the transcript of sentencing, there is no specific consideration of the fixing of a nonparole period. The respondent to the appeal therefore quite properly conceded that the Magistrate made a specific error and accepts that this error has been established.
40․That is a considered position on the part of the respondent with which I agree, for the reasons set out above.
Appeal Ground 4 – Failure to provide discount for pleas of guilty
41․Section 35 of the Sentencing Act provides as follows:
35Reduction of sentence—guilty plea
(1)This section applies if—
(a)an offender pleads guilty to an offence; and
(b)based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment.
(2)In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters:
(a)the fact that the offender pleaded guilty;
(b)when the offender pleaded guilty, or indicated an intention to plead guilty;
(c)whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;
(d)the seriousness of the offence;
(e)the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement.
Note For who may make a victim impact statement, see s 49.
(3)The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.
(4)However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.
(5)For subsection (2) (b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.
(6)A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(7)In this section:
available documents, in relation to the offence, means any of the following:
(a)any written statements or admissions made for use as evidence at a trial that would have been admissible as evidence at the trial for the offence;
(b)depositions taken at any committal proceeding for the offence;
(c)any written statements or admissions used as evidence in any committal proceeding for the offence;
(d)any other relevant written documents.
defence means—
(a)the offender; or
(b)any lawyer representing the offender.
established facts means facts established by—
(a)evidence given at the trial; or
(b)available documents; or
(c)admissions by the offender; or
(d)submissions made by the prosecution or defence.
(emphasis added)
42․Further, s 37 of the Sentencing Act provides that if a Court imposes a lesser penalty, the Court must articulate the lesser penalty imposed and the reason for the lesser penalty. Section 37 provides as follows:
37Reduction of sentence—statement by court about penalty
(1)This section applies if a court imposes a lesser penalty for an offence under section 35 (Reduction of sentence—guilty plea), section 35A (Reduction of sentence—assistance in administration of justice) or section 36 (Reduction of sentence—assistance to law enforcement authorities).
(2)The court must state—
(a)the penalty (including any shorter nonparole period) it would otherwise have imposed; and
(b)if the lesser penalty is imposed under section 35A or section 36—the reason for the imposition of the lesser penalty.
43․The appellant entered pleas of guilty to all charges on the seventh mention, but for CC2022/1074 where the plea of guilty was entered at the eighth mention. The respondent acknowledged that four of the mentions related to bail applications, and there were no pleas of not guilty entered prior to the entering of the pleas of guilty. Counsel for the appellant submitted that the appellant should have received a discount of approximately 20-25 percent.
44․There is a clear legislative requirement for a discount to be given. There are no reasons expressed for not giving a discount for a plea of guilty. This is an “error of significance”: see Urlich v The Queen [2019] ACTCA 30; 14 ACTLR 267 (Urlich) at [50] and [53].
45․It is important to set out at this juncture what happened at first instance.
46․First, the primary judge stated, “… he’s probably not going to be rewarded for having entered a guilty plea where the police case was absolutely overwhelming”.
47․Second, the matter was next referred to by the prosecutor who stated the following:
Your Honour is correct in your calculation that the pleas of guilty were entered on the 7th occasion. I agree with your Honour with respect to that not being an early plea of guilt, however, if your Honour does accept that there was a relevant discount, that would have to be taken into account under section 35 of the Crimes (Sentencing) Act in handing down of the sentence for the defendant.
48․Third, the primary judge stated, “You have pleaded guilty to these offences on what appears to be the seventh occasion they were before the Court. While that was late in the proceedings, I do not consider that there was a significant reduction required because the prosecution case was overwhelming”.
49․The prosecutor at first instance did not submit the prosecution case was “overwhelmingly strong”. There was no submission under s 35(4) of the Sentencing Act. On a review of the case before me, it is clear that the Magistrate did not go on to apply any discount in respect of any of the charges. This is a clear error.
50․I note, as was correctly submitted by counsel for the appellant, the only charge where the Magistrate was permitted not to articulate the discount given was in respect of CC2022/1075 (use numberplate improperly) because s 35 of the Sentencing Act only applies to sentences likely (or, in this case, able) to attract imprisonment. This offence is a “fine-only offence”. I note that it may be appropriate to draw on the fact that there has been no discount applied by the Magistrate to the other offences, to find that a plea of guilty has not been taken into account in respect of the fine.
51․It was clarified in written and oral submissions by counsel for the appellant that the appellant does not challenge the re-sentencing exercise regarding the minor theft (CC2022/8172). The Magistrate imposed the suspended portion of the sentence (one month of imprisonment) in response to the appellant’s breach of the GBO attaching to that offence. Counsel for the appellant conceded that Chief Magistrate Walker took into account the appellant’s guilty plea relating to that offence upon initial sentence on 3 November 2021. In addition, counsel for the respondent correctly made oral submissions that ss 35 and 37 do not “strictly apply” to the imposition of a suspended sentence as the imposition is dealt with under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act).
52․As I stated earlier, non-compliance with s 37 is a “specific error of significance”.
53․Taking into account the foregoing, the respondent properly conceded specific error in relation to this ground of appeal. In my view, error is clearly established.
Appeal Ground 5 – Error in disqualification commencing “on the completion of all of your periods of imprisonment”
54․In my view, there is a significant ambiguity as to the order pronounced by the Magistrate at first instance.
55․Relevantly, s 68 of the Road Transport (General) Act 1999 (ACT) (RTG Act) states:
68When licence disqualification takes effect
(1)If a person is disqualified (whether or not by court order) from holding or obtaining a driver licence because of being convicted or found guilty by a court in Australia of an offence against the law of any jurisdiction, the disqualification takes effect from the time of the conviction or finding or, if the court orders a later date, on the later date.
56․Section 68 has not been complied with. There is ambiguity as to when the disqualification period is to start. Is it when the terms of imprisonment end, that is, 12 July 2024? Or is it intended to commence at the end of the total effective sentence on 12 November 2024? In light of the above, this issue of ambiguity was properly conceded by the respondent in both written and oral submissions.
57․The respondent stated in written submissions that it is “not entirely clear what his Honour meant by “the completion of all of your periods of imprisonment” noting that his Honour sentenced the appellant to both full-time and suspended terms of imprisonment”. In oral submissions, the respondent conceded there was “some vagueness in [the Magistrate]’s orders”. Clearly, there are two valid interpretations in relation to the order made by the Magistrate. Thus, specific error is established as the Magistrate did not specify a date in accordance with s 68.
58․For the sake of completeness, it is important that I address the re-agitation, after purported abandonment by the appellant, of Ground 5.
59․Relevantly, section 218 of the Magistrates Court Act provides as follows:
218Orders by Supreme Court on appeals
(1)On an appeal to which this division applies, the Supreme Court may—
(a)confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or
(b)give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or
(c)set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate.
(2)A judgment or order of the Supreme Court under subsection (1) (a) or (b) has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.
60․In this case, in accordance with s 218, the appeal was not finalised on the first hearing on 16 October 2023 in that the orders, sentences and penalties were not confirmed, refused or varied. Therefore, the appeal was not finalised to completion or, by way of resort to Latin, the doctrine of “functus officio” does not apply as the case was not finalised on that day. Appeal Ground 5 could be reagitated and dealt with by the Court.
Conclusion: Grounds 2, 3, 4 and 5
61․Error is established concerning Grounds 2, 3, 4 and 5. In these circumstances, I will proceed to re-sentence. Nevertheless, it is appropriate to refer to the other grounds for the sake of completeness as these other grounds may bear some relevance to re-sentence. That is, Ground 6 concerning failure to take into account pre-sentence custody and the ground asserting of manifest excess.
Appeal Ground 6 – Failure to take into account pre-sentence custody
62․I note that in oral submissions on appeal before me, this ground was also properly conceded by the respondent.
63․Part 5.1 of the Sentencing Act governs the setting of dates when sentencing to a term of imprisonment. Section 62 provides that a sentence commences on the date it is imposed unless, pursuant to s 63(1), the Court has the sentence commence on an earlier date. Section 63(2) in turn requires that the Court take into account any time served on remand, referable to the matter being sentenced. Section 63 provides as follows:
63Start of sentences—backdated sentences
(1)The court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.
(2)For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence.
(3)However, subsection (2) does not apply to—
(a)a period of custody of less than 1 day; or
(b)a sentence of imprisonment of less than 1 day; or
(c)a sentence of imprisonment that is fully suspended; or
(d)the suspended part of a partly suspended sentence of imprisonment.
(4)If the offender is charged with a series of offences committed on different occasions and has been in custody continuously since arrest, the period of custody for subsection (2) must be worked out from the time of the offender’s arrest.
(5)Subsection (4) applies even if the offender is not convicted or found guilty of—
(a)the offence for which the offender was first arrested; or
(b)any particular offence or offences in the series.
64․As provided by s 63(2), it is mandatory for the Court to take into account time spent on remand. Section 63(2) is not discretionary.
65․In this case, the question arises as to how non-continuous or broken periods of imprisonment are taken into account when backdating a sentence of imprisonment. In such a case there are two alternatives. First, the sentence can be reduced or, second, the Court can backdate the sentence to a period when the offender was not in custody: see R v Hagen [2022] ACTSC 274 at [35]; see also R v Newman [2004] NSWCCA 113.
66․At first instance, it was “common ground between parties” that the appellant had served 105 days in custody that were solely referrable to the offences subject to sentencing. It was agreed on appeal that the correct figure is, in fact, 136 days. Counsel for the appellant submitted that this error arose because the Magistrate was incorrectly advised that the appellant was a sentenced prisoner until 26 February 2023. Instead, the correct position is that he ceased being a sentenced prisoner on 27 January 2023.
67․Nevertheless, even allowing for this, the Magistrate structured the sentences in such a way that resulted in only 61 days of pre-sentence custody being accounted for. The appellant was only taken to have served a backdated term of imprisonment between 25 January 2023 and 26 March 2023, resulting in only approximately half of the pre-sentence custody being accounted for in the Magistrate’s sentence. In light of this, 75 days of pre-sentence custody remain unaccounted for. Counsel for the appellant submitted, adopting the conventional approach of deducting 136 days from the date of sentence, the sentence imposed should have commenced on 28 November 2022.
68․The respondent did not cavil with counsel for the appellant’s submission that the correct number of days for the Court to take into account on re-sentence is therefore 136 days of pre-sentence custody. I will take this into account on re-sentence and commence the sentence, as agreed, on 28 November 2022.
Appeal Ground 1: Manifest excess
69․For the sake of completeness, I set out the submissions relating to manifest excess, in so far as there is some relevance to the resentencing exercise.
70․Counsel for the appellant asserted that the sentence imposed in respect of CC2022/1077 only, was manifestly excessive. The principles concerning a claim of manifest excess are well-established and were usefully set out in Tracey v The Queen [2020] ACTCA 51 (Tracey) at [37]-[38].
71․As stated earlier, the Magistrate imposed a sentence of 19 months’ imprisonment, suspended after 15 months, in respect of the charge of dishonestly driving a motor vehicle (CC2022/1077). Counsel for the appellant submitted in further written submissions on sentence that the sentence imposed is manifestly excessive for four reasons, as follows.
72․First, the appellant is required to serve 15 months (or 79 percent) of the sentence before he can be released on a GBO. Counsel for the appellant submitted the appellant is, therefore, denied the benefit of a nonparole period falling within the usual range of 50-70 percent. The appellant is also denied the opportunity for early release, notwithstanding any demonstration of substantial progress towards rehabilitation. Counsel for the appellant submitted this is important because the Magistrate sentenced the appellant on the basis that the appellant’s drug dependency, which started at the age of 12 years, was inextricably linked with the offences currently before the Court (as well as the other offences in his criminal history).
73․Second, counsel for the appellant submitted the offence was one that falls towards the lower end of the objective seriousness spectrum. Counsel for the appellant submitted that the appellant was not driving the stolen car for the purpose of committing further offences, nor was he driving in a manner that attracted police attention. The offending also occurred over a short period of time. As a result, notwithstanding the lack of leniency that can be extended to the appellant due to his criminal history, counsel for the appellant submitted the sentence imposed does not properly reflect the objective seriousness of the offence.
74․Third, sentencing statistics regarding offences of riding/driving a stolen motor vehicle contrary to s 318(2) of the Criminal Code 2002 (ACT) in the ACT Magistrates Court demonstrate the sentence is an “outlier”. I note here the comments of French CJ, Hayne, Kiefel and Bell JJ regarding the use of sentencing statistics in Barbaro at [40]-[41]:
The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.
75․Counsel for the appellant acknowledged sentencing statistics do not fix boundaries for future sentences. However, counsel for the appellant submitted that there is a clear sentencing pattern which can be established from the graphs above. The sentence imposed in this case of 19 months’ imprisonment is described by counsel for the appellant as an “outlier for such offending”. Counsel for the appellant submitted that, while manifest excess is not demonstrated merely by demonstrating a marked difference to other sentences for the same offence, it supports the assertion that the sentence was “plainly unjust” in all the circumstances.
76․Fourth, counsel for the appellant submitted that a review of comparative cases also supports the conclusion that this sentence was “unreasonable or plainly unjust”. A table of comparative cases was provided by counsel for the appellant, annexed to written submissions on behalf of the appellant.
77․The respondent submitted, having regard to the maximum penalty, the seriousness of the offending, the appellant’s subjective circumstances and the relevant purposes of sentencing, the sentence imposed was “appropriate in all the circumstances”. While the respondent did not concede manifest excess, in oral submissions the respondent sensibly and appropriately submitted that “to characterise [the sentence] as anything less than a very stern sentence would be unrealistic”. In my view, in light of the foregoing submissions of the appellant which I accept, that submission is undoubtedly correct.
Re-sentence
78․I am satisfied of specific error having been established and therefore the Court’s power to intervene is engaged and the sentencing discretion is to be exercised afresh: Kentwell at [35]. The appellate court, in exercising the sentencing discretion afresh, must take into account “the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit”: Kentwell at [38]. See also Turnbull v R [2019] NSWCCA 97 at [44].
79․A re-sentence is conducted under the same terms as an original sentence: s 110(4) of the Sentencing Act; see also R v Beniamini (No 2) [2017] ACTSC 32 (Beniamini (No 2)). The Court on re-sentence has available to it the material that was before the Magistrate at first instance.
Objective Seriousness
80․The facts of the offending relevant to re-sentence are detailed above at [16․]-[21]. It is not necessary to repeat them.
Maximum penalties
81․As underlined in Markarian at [30]-[31], the maximum penalty for each offence is relevant. The maximum penalties for the offences are set out below:
(a)Drive with prescribed drug in oral fluid (CC2022/1073): three months’ imprisonment and 25 penalty units ($4,000); licence disqualification 12 months minimum, five years default.
(b)Possess stolen property (CC2022/1074): six months’ imprisonment and 50 penalty units ($8,000).
(c)Use numberplate not properly issued (CC2022/1075): 20 penalty units ($3,200).
(d)Drive while disqualified (CC2022/1076): 12 months’ imprisonment and 100 penalty units ($16,000); licence disqualification of 24 months.
(e)Dishonestly drive a motor vehicle (CC2022/1077): five years’ imprisonment and 500 penalty units ($80,000).
(f)Minor theft (CC2020/8172): six months’ imprisonment and 50 penalty units ($8,000).
Drive with prescribed drug in oral fluid (CC2022/1073)
82․Courts have emphasised the risks of impaired driving; see for example R v Coleman [2021] ACTSC 349 at [46]:
The risk to the public from impaired driving is clear. It is a risk, not merely to passengers, but to other road users, both drivers and cyclists and also pedestrians and even, regrettably, those living in residences adjacent to roads.
83․Counsel for the respondent properly conceded there is no indication the appellant’s driving was impaired, however correctly identified that this is not a requirement of the provision. Counsel for the respondent further submitted that there is no information about how far or for how long the appellant had driven. Counsel for the respondent uncontroversially submitted that this “is a fairly typical example of this type of offending”. I agree with that assessment.
Possess property reasonably suspected of being stolen (CC2022/1074)
84․This is a rolled-up count. Counsel for the respondent submitted that the criminality encompassed in a rolled-up count is greater than that of an individual count: R v De Leeuw [2015] NSWCCA 183.
85․In relation to objective seriousness, the offence included:
(a)34 separate items belonging to at least 17 different people; and
(b)the property possessed included personal identification and banking items which are time consuming to replace.
Use number plate not properly issued (CC2022/1075)
86․Counsel for the respondent submitted, again uncontroversially, that this is a typical example of this type of offending. I agree with that assessment.
Drive while disqualified (CC2022/1076)
87․As stated by Refshauge AJ in R v Winters [2022] ACTSC 371 at [75], drive while disqualified is a serious offence:
…[I]n some jurisdictions it is ordinarily visited by a sentence of imprisonment, though that may not apply so much in the Territory: Poole v Edwards [2016] ACTSC 159 at [118]. It is…an undermining of the regulatory regime for driving, which is, of course, a potentially dire and dangerous, indeed possibly lethal, activity.
88․The relevant considerations for the offence of driving while disqualified were discussed by Refshauge J in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 (Cotter). The considerations include the following:
(a)repetition;
(b)the contumacious nature of the offending – being something more than a mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard for the disqualification, in disobedience to the authority which imposed it: Cotter at [36];
(c)whether the driving was associated with the commission of other offences;
(d)the duration of the driving; and
(e)the time when disqualification was imposed: Cotter at [42].
89․The appellant in this matter knew the consequences for driving contrary to a disqualification, having been dealt with for the same offence previously. There was no reason for the appellant to drive.
90․The disqualification was imposed almost a year earlier and was then due to expire in less than one month. The car the appellant was driving was a stolen vehicle. These facts are all relevant to sentence as relevant identifying features of the offending.
Drive motor vehicle without consent (CC2022/1077)
91․The factors relevant to the assessment of objective seriousness for this offence are set out in R v Rosewarne [2021] ACTSC 217 at [124] and R v Massey (No 3) [2021] ACTSC 156 at [29]. The factors include the following:
(a)whether the offender drove or rode in the vehicle;
(b)the duration of the driving or riding;
(c)if the offender was the driver, the nature of the driving (unless charged separately);
(d)whether the driving caused damage to the vehicle (unless charged separately) and whether the vehicle was recovered undamaged and returned to the owner;
(e)whether the vehicle was used in the commission of another offence;
(f)whether false numberplates were affixed to the vehicle (unless charged separately).
92․This offence is the most serious of the charges for which the appellant is to be sentenced. As stated earlier, there is no evidence to suggest the appellant was driving in a way that attracted the attention of police. On the facts, the driving did not cause damage to the vehicle, but the vehicle’s ignition barrel had been tampered with and removed from its ordinary position. The appellant’s solicitor at first instance conceded the appellant had caused this damage.
93․There is no evidence the vehicle was used in the commission of another offence. I further note the offence of false numberplates being affixed to the vehicle has been charged separately. Counsel for the respondent submitted that the offence prescribed by s 318(2) of the Criminal Code deals with both the ‘riding in’ and ‘driving of’ a stolen motor vehicle. In light of the considerations above, counsel for the respondent submitted that the ‘driving of’ a stolen motor vehicle, as is the case here, is ordinarily a more serious example of a s 318 offence than ‘riding in’ a stolen motor vehicle. So much is tolerably clear.
94․Counsel for the appellant submitted that, in relation to this offence, the offending was towards the lower end of objective seriousness as outlined earlier in this judgment at [7373․]. On re-sentence, counsel for the appellant submitted that the index offence is “an unremarkable example of such offending and falls towards the lowest end of the objective seriousness spectrum for this kind of offending”. I agree, taking into account the foregoing, that the objective seriousness is at the lower end for offences of this nature.
Subjective factors
95․The appellant’s subjective circumstances are comprehensively discussed in the Pre-Sentence Report (PSR), which was relied upon by both parties.
96․The PSR outlined that the appellant had been known to Corrective Services since 2002 and had been subject to several community-based orders. It outlines that his engagement with supervision had been sporadic and that he had committed “multiple” breaches of community-based orders. This, it must be said, is not a positive factor in his favour on re-sentence.
Criminogenic risk
97․The appellant is 42 years old. The appellant described to the PSR author at first instance his childhood “in negative terms, having witnessed alcohol abuse and domestic violence perpetrated by his father against his mother”. Counsel for the appellant submitted, however, the most salient feature of his childhood is his early exposure to substance abuse. The following was reported by the author of the PSR:
[The appellant] commenced cannabis use and alcohol consumption at 12 years of age. He reported that his alcohol use became problematic around the age of 18, at which time he also started using methamphetamines and amphetamines. [The appellant] admitted that since this time, he had used methamphetamines almost consistently throughout his life, eventually escalating to intravenous use. [The appellant] also reported having used heroin for just over a year before the birth of his youngest child… However, [the appellant] claimed to have ceased heroin [use] eight years ago motivated by his son having been born addicted to the substance….
[The appellant] reported that he felt drug use was his greatest risk factor when it came to criminal offending. He reported methamphetamine often caused him to make irrational or high-risk decisions and claimed that the majority of his offences had occurred whilst he was affected by this substance. [The appellant] advised that his worse period of methamphetamine use was in 2018 and 2019 during a temporary breakdown of the relationship with his current partner. He advised that he was abstinent from all illicit substances for a period of seven years between 2005 and 2012 after completing an Intensive detox program at Arcadia House. During this period, it is noted that [the appellant] was not convicted of any criminal offences.
[The appellant]’s most recent engagement with drug rehabilitation was in March 2022 with the Wayback program… He was removed from this program shortly after for using methamphetamines.
98․Being removed from a drug rehabilitation program for using drugs is not an encouraging matter for rehabilitation. Nevertheless, it is well known by the Courts that drug rehabilitation is not linear.
99․Regarding the appellant’s employment history, after completing Year 10 of his schooling, the appellant completed a traineeship in exhaust fitting and service technician work. He has a long history of employment, albeit inconsistently and often on a casual basis. Nevertheless, there is some real potential concerning employment.
100․The PSR on first instance detailed that the appellant is the father of four children, aged between eight and 16 years. He is currently in a relationship with the mother of his youngest child. The appellant considers his children to be his primary motivation to returning back to the community and is particularly concerned that his oldest son is following in his footsteps due to use of illicit drugs and involvement with the criminal justice system. The appellant made comments in court from the dock consistent with this at the appeal hearing.
101․Counsel for the appellant submitted, correctly in my view, those subjective factors lend themselves to the following conclusions:
(a)The appellant’s use of alcohol and illicit drugs occurred at such a young age that his dependency on alcohol and illicit drugs cannot be described as a “personal choice”. Rather, it can be inferred this early introduction into substance misuse is a product of social disadvantage, particularly when considering his own father abused alcohol (thereby normalising the behaviour) and the appellant was exposed to family violence. All of these factors engage the principles in R v Henry [1999] NSWCCA 11; 106 A Crim R 149 at [201] and [273], namely, the recognition of an early addiction to substance abuse as a mitigating factor at sentence. To a limited degree, the principles in Bugmy v R [2013] HCA 37; 249 CLR 571 are also enlivened (consistent with the findings of the Magistrate);
(b)The appellant’s key criminogenic risk is his substance dependency. As noted by the author of the PSR, when the appellant was abstinent between 2005 and 2012, he was not convicted of any offences. The appellant’s prospects of rehabilitation are strongly connected to his dependency on alcohol and illicit drugs. Counsel for the appellant submitted the appellant has taken promising steps towards addressing this dependency and invited the Court to treat his prospects of rehabilitation with guarded optimism;
(c)The appellant has the capacity and the skills to be employed. This is significant as he has the tools required to maintain a productive and meaningful life; and
(d)The appellant has powerful motivating factors that will drive him to continue his journey towards rehabilitation. Counsel for the appellant submitted the appellant’s motivation to rehabilitate is evident by his continued engagement with support services at 42 years of age.
102․I take those submissions on the part of the appellant’s counsel into account on sentence. The submissions accord with my view of the facts in this case.
Conditional liberty
103․The appellant was subject to conditional liberty at the time of the offending. The appellant entered into a six-month GBO attached to a suspended term of imprisonment on 3 November 2021. This offending occurred approximately two months into the GBO. The appellant is also to be re-sentenced in relation to that breach. Breach of conditional liberty is an aggravating matter on sentence.
Criminal history
104․The appellant has a significant criminal history. Relevantly, the appellant’s criminal history includes prior convictions for taking, driving or riding in motor vehicles without authority. Relevantly and regrettably, the appellant has a significant number of convictions for drug in oral fluid or prescribed content of alcohol offences, 10 convictions for driving while disqualified, and two convictions for using false numberplate. The appellant also has a number of relevant convictions that post-date this offending. Counsel for the respondent submitted there is “no room for leniency in this regard”. It was conceded by counsel for the appellant that the appellant’s criminal history entitled him to “very little leniency”. It is clear, in my view, that the appellant’s criminal record cannot be a source of leniency of any significance.
105․I also note that there is a prior entry for an offence of joint commission take motor vehicle without consent which occurred on 13 March 2020. There are other offences of quite some antiquity that are not relevant to take into account.
Pleas of guilty
106․Where the Court considers there is a real likelihood of a sentence of imprisonment being imposed, the Court is required to consider whether a lesser penalty is appropriate for each offence as a result of the appellant’s pleas of guilty: s 35 of the Sentencing Act.
107․Counsel for the appellant submitted that, as guilty pleas to all charges were entered without the benefit of the brief of evidence, a 25 percent discount should be afforded to all sentences except in respect of CC2022/8172 (being the charge involving a breach of a suspended sentence of imprisonment).
108․Counsel for the respondent in this matter accepted that a lesser penalty should be imposed than would otherwise be warranted on the basis of the appellant’s pleas of guilty. Counsel for the respondent submitted that the plea of guilty should be considered a relatively early plea, in that it did not involve any plea of not guilty and a number of the early mentions before the pleas were entered were for the purpose of bail applications. On appeal, counsel for the respondent did not make any submissions that the prosecution case was overwhelming, or that this should impact any discount afforded to the appellant. Taking into account the foregoing, I will therefore impose a discount of 25 percent.
Time in custody
109․As stated earlier, the commencement date of any sentence of imprisonment should be backdated to commence on 28 November 2022 to reflect the 136 days the appellant had spent remanded in custody prior to sentence, and the further 217 days the appellant has spent in custody since sentence.
References
110․A letter of support authored by an AMC Family Worker dated 10 October 2023 was tendered on re-sentence. The letter included the following:
This letter is to confirm the observed progress of [the appellant] during his time in the Solaris Therapeutic Community whilst I was employed with Karralika Programs; and more recently via [the appellant]’s engagement with myself in my role as the AMC Family Worker.
[The appellant] first entered the Solaris Therapeutic Community in March 2022 for the purpose of undertaking a rehabilitation program while in custody. The Solaris Therapeutic Community is a dedicated unit of 28 beds aimed at assisting detainees to address their alcohol and other drug related problems. Detainees complete a sixteen-week program focused on identifying concerns, personal growth and gaining tools to assist in their recovery. The program is scaffolded with one-on-one case management, living side by side with peers in the program and support from Solaris staff daily.
[The appellant] was polite and respectful to all community members however he presented as quiet and reserved in his engagement in various aspects of the program. [The appellant] left the program early due to being released into the community. [The appellant] relapsed and entered the program for a second time on 11 May 2023. Whilst still a quieter member of the community, he appeared reflective of his relapse and open to the Therapeutic Community process. [The appellant] began to insert himself into the program and has displayed a steady growth throughout, by building self-awareness to reflect his struggles in both the past and moving forward.
[The appellant] has been able to identify consistent behavioural and external patterns that have held him back in the past and has explored self-esteem issues and avoidant behaviours, along with the strengthening the practice of reaching out for support when needed. [The appellant] has worked on supporting a positive and proactive attitude throughout his time at Solaris regarding his treatment and participation in the program and has maintained the principles of the Therapeutic Community with a commitment to the continued work of placing his recovery first. Further to this, [the appellant] opted to extend his learning via participation in the [eight]-week graduate program and now resides in the Unit in a Community Support role.
[The appellant] has actioned his new support seeking behaviours and has recently reached out for engagement with family matters. Now employed by Justice in Corrections as an AMC Family Worker, I have begun working with [the appellant] in further exploring his family relationships; and how this relates to continuing his work on remaining abstinent from substance use to support recovery and strengthen his role within the family unit. [The appellant] continues to impress me with advocating for his needs and seeking out supported conversations, along with his openness and vulnerability in these discussions.
(emphasis added)
111․Importantly, this letter outlining the appellant’s progress describes some real potential for rehabilitation. Rehabilitation will be further discussed below.
Rehabilitation
112․Counsel for the respondent pointed to the comments of the PSR author indicating that the appellant would require “maximum supervision” in the community. I agree. The appellant was not suitable for community service or an Intensive Correction Order due to his drug addiction. Counsel for the respondent noted the comments of the PSR author under the heading “Attitude to Offences”. The PSR noted that the offences were impulsive and spurred by heavy methamphetamine use. The appellant also self-reported that he felt his drug use was the greatest risk factor when it came to criminal offending.
113․As referred to earlier, in 2022, the appellant attempted a drug rehabilitation program known as ‘Wayback’ and was unsuccessful due to using amphetamines shortly after commencing the program.
114․Nevertheless, as underlined earlier, on 25 August 2023 the appellant completed the 16-week residential rehabilitation course known as ‘Solaris’ in the Alexander Maconochie Centre. This represents a significant turning point, akin to when the appellant completed the ‘Intensive Detox Program’ at Arcadia House and was abstinent for seven years, with a related abstinence from offending. He has also returned a negative urinalysis result for any illicit drugs while in custody.
115․The appellant has prepared a detailed relapse prevention plan. Counsel for the appellant submitted that the appellant’s next step in his rehabilitative progress is to engage in further rehabilitation in the community, to gain custody of his child, to gain employment, and to join a softball team.
116․Counsel for the respondent accepted that it was apparent from the additional material tendered on appeal that the appellant has taken steps to pursue his rehabilitation and agreed this should be taken into account. However, the Court and both counsel inevitably agreed that rehabilitation is not linear and, given the appellant’s long-term drug addiction and closely related offending, the Court is guarded in relation to the appellant’s prosects of rehabilitation.
117․Counsel for the appellant submitted that all of these steps need to be considered in the context of the appellant having demonstrated to the author of the PSR an acceptance of “full responsibility for his offending” and “identified various risk factors without relying on these as justifications for his actions”. I do so.
Breach of Good Behaviour Order (suspended sentence)
118․The appellant was in breach of a GBO imposed in relation to CC2020/8172 by way of the commission of offences CC2022/1073-77. The Court must cancel the GBO and either impose the suspended sentence or re-sentence the offender for the offence: s 110(2) of the Sentence Administration Act. Counsel for the respondent submitted the Court ought ordinarily impose a more severe sentence, because the breach of the GBO shows that the trust reposed in the offender has been eroded: R v Ogilvie (No 2) [2016] ACTSC 265 at [30]. However, in certain circumstances, the Court can impose the same sentence: R v Curtis (No 2) [2016] ACTSC 34.
119․The Statement of Facts and criminal history of the appellant relevant to the breach were annexed to the submissions of the respondent, before me on re-sentence.
120․Counsel for the respondent submitted the following factors were relevant to the consideration of whether to impose or re-sentence:
(a)The proportion of the GBO served. In this case, the sentence was imposed on 3 November 2021 and the fresh offending occurred in January 2022. This is about half of the GBO having been served.
(b)Any rehabilitation attained prior to the breaching conduct. This was addressed by counsel for the appellant at first instance in terms of long-term attempts at rehabilitation. There was no specific reference to any rehabilitation attempts between the imposition and breach of the order.
(c)The nature of the offence which breached the order, including whether it is of similar conduct. One of the offences which breaches the order is of a similar character, being the unlawful possession of stolen property offence.
(d)The relative seriousness of the offence causing the breach. Counsel for the respondent submitted the breach is relatively serious. The breach occurred halfway through the sentence and by way of multiple offences.
(e)The actual facts of the matter for which the offender was first sentenced: Beniamini (No 2) at [52]-[53]. The facts of this matter show that the offence was a typical shop-lifting type minor theft offence.
(f)Whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour. Counsel for the respondent submitted the breaches indicate a general unwillingness or inability to comply with orders of the Court. This is consistent with the PSR which indicates the appellant has been dealt with for multiple breaches of community-based orders.
(g)Whether the offender had received any warnings with respect to breaches. It is unclear whether the appellant had received any warning in relation to this particular order. However, counsel for the respondent submitted the appellant’s criminal history and the PSR make apparent that he has not had high levels of success in complying with orders.
(h)The level of understanding of the offender of his obligations under the terms of the order and the consequences of a breach: The Queen v PM (No 2) [2015] ACTSC 358 at [20]-[22]. Counsel for the respondent submitted that the appellant would be well aware of both the obligations of a good behaviour order and consequences of breaching this order having been subject to orders and dealt with for breaches on multiple previous occasions.
(i)The nature of judicial and community resources previously devoted to the offender.
121․Counsel for the respondent submitted that, based on the seriousness of the breach and the prior non-compliance with the GBO, the suspended sentence be imposed. It is appropriate to do so in light of the factors set out above, and I propose to adopt that course.
Comparable cases
122․Counsel for the respondent submitted that the offences for which the appellant is being sentenced are not regularly subject of written reasons, given they are often sentence proceedings that occur in high volume lists in the Magistrates Court. Where these offences are sentenced in the Supreme Court, counsel for the respondent submitted it is usually in conjunction with more serious offences. For that reasons, comparable cases available to assist the Court are limited.
123․Statistics in relation to all of the offences, other than drug in oral fluid, were annexed to the submissions of the respondent.
Licence disqualification periods
124․At the outset, I note that the following minimum disqualification periods apply to two of the offences for which the appellant has been convicted:
(a)CC2022/1073 (offence of driving with a prescribed drug in oral fluid as a repeat offender): minimum disqualification period of 12 months (and a default disqualification period of five years); and
(b)CC2022/1076 (drive while disqualified as a repeat offender): an automatic disqualification period of 24 months applies.
125․The appellant is subject to the following licence disqualification periods in accordance with the decision of the Magistrate:
(a)Drive with prescribed drug in oral fluid (CC2022/1073): a licence disqualification of three years;
(b)Drive while disqualified (CC2022/1076): a licence disqualification of two years (concurrent with above disqualification);
126․As stated earlier, the total driver’s licence disqualification period is three years commencing at the “conclusion of the sentence of imprisonment”. I upheld Ground 5 on the basis that there is some ambiguity as to when the Magistrate intended the disqualification period to commence.
127․An issue arose in these proceedings concerning whether the licence disqualification periods as a result of the convictions for drive with prescribed drug in oral fluid (CC2022/1073) and drive while disqualified (CC2022/1076) were subject of the appeal before me. Parties provided further written submissions in relation to this matter.
128․I note that the overarching submission of the respondent, prior to the subsequent successful re-agitation of Ground 5, was that the disqualification periods were “not properly before this Court by way of the appeal process” and that, therefore, “no orders may be made in relation to the disqualification periods as part of the resentencing process”.
129․It is clear from Beath v McCurley [2018] ACTCA 48; 339 FLR 165 (McCurley) that there is no right of appeal from a licence disqualification that is the statutory minimum, as the disqualification has arisen by operation of the relevant statute, not by Court order: McCurley at [35]-[36]. The jurisdiction for the Court to consider an appeal of a licence disqualification greater than the statutory minimum was the clear legislative intention of s 208(1)(g) of the Magistrates Court Act. A licence disqualification period is clearly appealable if it is greater than the statutory minimum. That is the case in relation to only one of the two disqualification periods in this case: CC2022/1073 (drive with a prescribed drug in oral fluid; repeat offender) for which the statutory minimum licence disqualification period is 12 months, and the period imposed by the Magistrate was three years.
130․It is beyond dispute that in relation to CC2022/1076 (drive while disqualified), where the automatic disqualification period was imposed, it was not open to the appellant to appeal against that period of disqualification: see McCurley.
Jurisdiction of the Court
131․Prior to the re-agitation of Ground 5, submissions were made before me addressing the jurisdiction of the Court to hear an appeal concerning licence disqualification periods in the absence of a specific ground of appeal.
132․Overall, it was the respondent’s position that without a specific ground of appeal, properly brought in accordance with s 208(1)(g), there is no jurisdiction for this Court to make any orders in relation to any disqualification periods.
133․Broadly, counsel for the appellant submitted that the Court has a discretion to make new orders regarding the disqualification periods “even if they were not subject of the appeal”, under s 218(1)(b) of the Magistrates Court Act.
134․I note that I do not need to decide this point in the circumstances of this case because counsel for the appellant re-agitated Ground 5 of the appeal concerning disqualification.
Conclusion concerning CC2022/1073 disqualification
135․It is appropriate for the disqualification periods to be wholly concurrent because the offending arose from the same course of conduct. I note this was the intention of the Magistrate at first instance.
136․Counsel for the appellant submitted the capacity to hold a driver’s licence often plays an important role in sustaining employment. Counsel for the appellant submitted that while the appellant has no immediate employment secured (as his focus will be on further rehabilitation), it is significant to his future because the ability to drive will enhance his suitability as an employee and expand the types of jobs he can engage in. This is undoubtedly correct.
137․I propose to reduce the disqualification period from three years to two years in light of these matters.
138․The periods of disqualification should be served concurrently. To ensure there is no ambiguity, I will attach a specific date to the commencement of the disqualification period being the conclusion of the minimum term of imprisonment (consistent with the nonparole period) being 4 December 2023.
Sentence
139․The principles in relation to concurrency and accumulation were conveniently summarised in Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27]. See also Tracey at [53]. As properly agreed by parties at hearing, an appropriate sentence is best achieved by a significant degree of concurrency in this case. Nevertheless, the principle of totality should not be applied so as to suggest the offender is receiving a discount for multiple offending: O’Brien v The Queen [2015] ACTCA 47, citing Pearce v The Queen [1998] HCA 57; 184 CLR 610.
140․In relation to the charges of proscribed drug in oral fluid (CC2022/1073), possess stolen property (CC2022/1074), drive while disqualified (CC2022/1076) and dishonestly drive motor vehicle (CC2022/1077), with respect to the appellant’s criminal history and need for specific deterrence, a period of imprisonment is warranted.
141․As discussed earlier, if the sentence to be imposed is 12 months of imprisonment or greater, the Court must impose a nonparole period, or decline to do so. I propose to impose a nonparole period.
142․The appellant has shown important progress while in custody in the Solaris Program. Such progress much be encouraged. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32] that “[r]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”. Otherwise, it must be said imprisonment just becomes a revolving door. The community cannot be protected in that way. This bears repetition; the community is not protected when imprisonment is a revolving door for offenders. Long term rehabilitation is the most effective guarantor of community protection.
143․In sentencing the appellant, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above. The Court sentences in the context of the objects in s 6 and the sentencing purposes in s 7 of the Sentencing Act. I take these principles into account on sentence.
144․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters of the appellant.
145․In relation to the offence of minor theft, the GBO is revoked and the appellant is sentenced to one months’ imprisonment. The offence is backdated to commence on 28 November 2022 to account for the time already spent in custody.
146․The appropriate sentence for drive with prescribed drug in oral fluid is two months’ imprisonment, reduced to one month and 15 days’ imprisonment on account of the plea of guilty, and a two-year licence disqualification.
147․The appropriate sentence for the offence of possess stolen property is one months’ imprisonment, reduced to three weeks’ imprisonment on account of the plea of guilty.
148․The appropriate sentence for the offence of use numberplate not properly issued is a fine of $600, with no time to pay.
149․The appropriate sentence for drive while disqualified is six months’ imprisonment, reduced to 4 months and 15 days’ on account of the plea of guilty, and an automatic 24-month licence disqualification (as a repeat offender).
150․The appropriate sentence for dishonestly drive a motor vehicle is 17 months and 10 days’ imprisonment, reduced to 13 months’ imprisonment on account of the plea of guilty.
151․I will impose a nonparole period of just under 70 percent of the overall sentence. It is clear that the offender will require counselling and close supervision in the community on parole.
Orders
152․For these reasons, the following orders were made:
(1)The appeal is upheld and the sentence of the Magistrate is set aside.
(2)On the charge of minor theft (CC2020/8172), the Good Behaviour Order is revoked and the offender is sentenced to one months’ imprisonment commencing 28 November 2022 and expiring 27 December 2022.
(3)On the charge of drive with prescribed drug in oral fluid (CC2022/1073), the offender is sentenced to one month and 15 days’ imprisonment, commencing on 26 December 2022 and expiring on 9 February 2023. I impose a licence disqualification of two years commencing 4 December 2023.
(4)On the charge of possess stolen property (CC2022/1074), the offender is sentenced to three weeks’ imprisonment commencing from 3 February 2023 and expiring on 23 February 2023.
(5)On the charge of use numberplate not properly issued (CC2022/1075), the offender is sentenced to a fine of $600 with no time to pay.
(6)On the charge of drive while disqualified (CC2022/1076), the offender is sentenced to four months and 15 days’ imprisonment commencing 14 February 2023 and expiring 28 June 2023. An automatic licence disqualification of 24 months applies, to be served concurrently with the licence disqualification in Order 3, commencing 4 December 2023.
(7)On the charge of dishonestly drive a motor vehicle (CC2022/1077), the offender is sentenced to 13 months’ imprisonment commencing 28 April 2023 and expiring 27 May 2024.
(8)I impose a nonparole period of one year and seven days commencing 28 November 2022 and expiring 4 December 2023.
| I certify that the preceding one hundred and fifty-two [152] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 30 November 2023 |
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